Thursday, August 13, 2020

Court dismisses BERA employees’ application

Industrial Court Judge Gaedupe Makgato has dismissed an urgent application launched by dismissed Botswana Energy Regulatory Authority (BERA) employees. Tshegofatso Keitumetse, Tshephang Sebogodi and Nthabiseng Nyepetsi approached the court on urgency seeking among others setting aside of their disciplinary proceedings of BERA which resulted in their dismissal and declaring that the decision by BERA to dismiss them was unlawful. According to court records, on a proposal by the Court, both lawyers for the applicants and BERA agreed to address the Court of the issue of urgency only.

The charge for which the three applicants were dismissed was that of wilful disclosure of confidential information. The charge arose from the occurrences of around the 12 February 2020 whilst they were on suspension. The charge specifically relates to the conduct of the applicants during the time they were suspended employees of BERA. Makgato noted that “It is accepted by this Court that the noting of an appeal automatically suspended the execution or implementation of the decision appealed against. It is then for the successful party, if he desires, to apply for leave to execute.”

He added that “In the circumstances of the present proceedings, I do not think the above common law principle cab be construed to mean that an employee who is challenging disciplinary proceedings before the courts is immune from disciplinary action if he/she conducts himself/herself in a manner offensive to his/her employer’s code of conduct.” In the present case, Gaedupe said, the applicants were on suspension pending disciplinary proceedings against them. “Their challenge of those proceedings was also pending before the courts. The applicants’ contention before the Court suggests that they could flout the respondent’s (BERA) code of conduct with no consequences. I cannot agree with that line of argument,” said the judge.  He said an employee has a duty to maintain order and discipline within his or her organisation.

“Therefore it is legally competent, in my view, for the employer to call to book all employees, including those on suspension pending disciplinary proceedings, who conduct themselves in breach of the employer’s code of conduct,” said Gaedupe. It also emerged from court records that the trio still have an appeal pending before the Court of Appeal. “Worthy of note is that the matters pending before the Court of Appeal are in respect of disciplinary charges totally different from the charge which form the subject of the present proceedings. Before the Court of Appeal are appeals against the Industrial Court’s decisions dismissing urgent applications launched by the Applicants on the 4th February 2020,” said Gaedupe.  

He said the subject matter in those urgent applicants were charges not in any way related to the present charge of disclosure of confidential information. According to the judge, “The applicants have failed to demonstrate before this Court that there is no redress available to them under section 6 and 7 of the Trade Disputes Act. In a nutshell I’m not persuaded that this matter is urgent or deserving of any urgent treatment. The matter shall be dismissed as is deserving of no urgency.”

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